It also represents my greatest disappointment as a member of the Court. Their twin failure-first, the misreading of the intended meaning of the Second Amendment, and second, the failure to respect settled precedent-represents the worst self-inflicted wound in the Court’s history. At a minimum, it should have given them greater pause before announcing such a radical change in the law that would greatly tie the hands of state and national lawmakers endeavoring to find solutions to the gun problem in America. So well settled was the issue that, speaking on the PBS NewsHour in 1991, the retired Chief Justice Warren Burger described the National Rifle Association’s lobbying in support of an expansive interpretation of the Second Amendment in these terms: “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”Įven if the lobbyists who oppose gun-control regulation actually do endorse the dubious proposition that the Second Amendment was intended to limit the federal power to regulate the civilian use of handguns-that Burger incorrectly accused them of “fraud”-I find it incredible that policy makers in a democratic society have failed to impose more effective regulations on the ownership and use of firearms than they have.Īnd even if there were some merit to the legal arguments advanced in the Heller case, all could foresee the negative consequences of the decision, which should have provided my colleagues with the justification needed to apply stare decisis to Miller. After reviewing many of the same sources that are discussed at greater length by Scalia in his majority opinion in Heller, the Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have “some relationship to the preservation or efficiency of a well regulated militia.” And in 1980, in a footnote to an opinion upholding a conviction for receipt of a firearm, the Court effectively affirmed Miller, writing: “he Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’” The first two federal laws directly restricting the civilian use and possession of firearms-the 1927 act prohibiting mail delivery of handguns and the 1934 act prohibiting the possession of sawed-off shotguns and machine guns-were enacted over minor Second Amendment objections that were dismissed by the vast majority of legislators participating in the debates. Until Heller, the invalidity of Second Amendment–based objections to firearms regulations had been uncontroversial. ![]() Read: Why the Supreme Court won’t impact gun rights Most, if not all, of those regulations would violate the Second Amendment as it was construed in the 5–4 decision that Justice Antonin Scalia announced in Heller on June 26, 2008. ![]() Boston’s gunpowder law imposed a 10-pound fine on any person who took any loaded firearm into any dwelling house or barn within the town. Those and other cities also regulated the storage of gunpowder. Boston enacted a law in 1746 prohibiting the “discharge” of any gun or pistol that was later revived in 1778 Philadelphia prohibited firing a gun or setting off fireworks without a governor’s special license and New York banned the firing of guns for three days surrounding New Year’s Day. ![]() Boston, Philadelphia, and New York-the three largest cities in America at that time-all imposed restrictions on the firing of guns in the city limits. In that case, the Court upheld the indictment of a man who possessed a short-barreled shotgun, writing, “In the absence of any evidence that the possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”Ĭolonial history contains many examples of firearm regulations in urban areas that imposed obstacles to their use for protection of the home. Miller as having established that the Second Amendment’s protection of the right to bear arms was possessed only by members of the militia and applied only to weapons used by the militia. When I joined the Supreme Court in 1975, both state and federal judges accepted the Court’s unanimous decision in United States v. ![]() Throughout most of American history there was no federal objection to laws regulating the civilian use of firearms. This article was adapted from The Making of a Justice: Reflections on My First 94 Years, by John Paul Stevens.
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